March 17, 2004

A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50902(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-state-farm-mut-auto-ins-co-2004-ny-slip-op-50902u/

Court: Appellate Term, Second Department
Decided: March 17, 2004
Citation: 2004 NY Slip Op 50902(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Provider's prima facie case
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 2004 NY Slip Op 50902(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2004)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The providers' billing affidavit failed to lay a foundation for their claim forms because it did not identify which provider the affiant represented. Three providers sought summary judgment for unpaid no-fault services. The affiant identified being a practice and billing manager and officer of a singular provider, without identifying that entity. The court could not assume authority to act for one or all providers, so the affidavit did not establish submission of complete claims. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Alternatively, the insurer raised a triable fraud issue under the companion appeals decided the same day, Nos. 2003-469, 470, 471 N C.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50902(U))

[*1]

A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co.

2004 NY Slip Op 50902(U)

Decided on March 17, 2004

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

PRESENT: McCABE, P.J., LIFSON and SKELOS, JJ.
NO. 2003-613 N C

A.B. MEDICAL SERVICES PLLC ROYALTON CHIROPRACTIC P.C. FRANKLIN ST. MARKS MEDICAL P.C. a/a/o Leroy Clarke, Appellant,
against
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from so much of an order of the District Court, Nassau County (J. Asarch, J.), entered January 2, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

Plaintiffs commenced this action to recover first-party no-fault benefits for medical services rendered to their assignor, as well as statutory interest and attorney’s
fees, pursuant to Insurance Law § 5101 et seq. Thereafter, plaintiffs moved for
summary judgment and defendant cross-moved for consolidation and summary
judgment dismissing the complaint. By order entered January 2, 2003, the court below denied both motions.

In support of its motion, plaintiffs submitted an affidavit in which Bella Safir states that she is the “practice and billing manager” and “an officer of plaintiff,” even though there are three distinct plaintiffs in this matter. We note that A.B. Medical Services, PLLC and Royalton Chiropractic P.C. have different business addresses, and no address is provided for Franklin St. Marks Medical P.C., for which there is also no assignment. The affidavit does not indicate for which “plaintiff” Safir is the billing manager and this court cannot assume that she is acting on behalf of one particular plaintiff, or on behalf of all of the plaintiffs. Consequently, her affidavit in which she states that “plaintiff” provided defendant with complete claim forms is insufficient to establish said fact inasmuch as the affidavit does not lay the necessary foundation for the admissibility of the claim forms as to any of the named plaintiffs (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., Misc 3d [App Term, 9th & 10th Jud Dists, decided Mar. 12, 2004]). Accordingly, plaintiffs have failed to make a prima facie showing of entitlement to judgment as a matter of law (cf. Damadian MRI in Elmhurst, P.C. v Liberty Mut. Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 9th & 10th Jud Dists]; Amaze Med. Supply Inc. [*2]v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Assuming, arguendo, that Safir’s affidavit was sufficient and plaintiffs established their prima facie entitlement to summary judgment, we would nonetheless affirm the order of the court below inasmuch as defendant raised a triable issue of fact as to fraud (see A. B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., Nos. 2003-469, 470, 471 N C [decided herewith]).
Decision Date: March 17, 2004

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)

Held the providers failed their prima facie case because the billing manager's affidavit did not identify which of the three plaintiffs she represented, so it could not establish that complete claim forms were provided.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.

Cited by

A.B. Med. Servs. PLCC v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 24181)The insurer's EUO transcripts and investigator's affidavit raised triable fraud issues despite untimely denials.

Similar decisions

A.B. Med. Servs. v Allstate Ins. Co. (2004 NY Slip Op 50373(U))The providers' billing affidavit failed to establish their prima facie case because it did not identify which of three providers it covered.
A.B. Med. Servs. v Am. Tr. Ins. Co. (2004 NY Slip Op 50515(U))The providers failed to establish submission of completed claim forms because their billing affidavit did not identify the provider it covered.
A.B. Med. Servs. v Country-Wide Ins. Co. (2004 NY Slip Op 50535(U))The providers' billing affidavit failed to establish their prima facie case because it did not identify which provider employed the billing manager.
A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 50779(U))The providers' billing-manager affidavit failed to establish their prima facie case because it did not identify which provider it covered.
A.B. Med. Servs. Pllc v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 50692(U))The providers failed to establish entitlement to summary judgment because their billing manager did not identify the provider represented.